EXHIBIT 3 (ii)
BYLAWS OF
MAIL BOXES ETC.
RESTATED AND ADOPTED AS OF
OCTOBER 1, 1988
(AMENDED FEBRUARY 25, 1997)
BYLAWS OF
MAIL BOXES ETC.
TABLE OF CONTENTS
Article Section Page
1. Offices . . . . . . . . . . . . . . . . . . . .1
1.1 Principal Executive Office . . . . . . . .1
1.2 Other Offices. . . . . . . . . . . . . . .1
2. Meetings of Shareholders. . . . . . . . . . . .1
2.1 Place of Meeting . . . . . . . . . . . . .1
2.2 Special Meetings . . . . . . . . . . . . .2
2.3 Notice of Meetings . . . . . . . . . . . .2
2.4 Quorum . . . . . . . . . . . . . . . . . .3
2.5 Adjourned Meeting and Notice Thereof . . .4
2.6 Record Date. . . . . . . . . . . . . . . .4
2.7 Voting Rights; Cumulative Voting . . . . .5
2.8 Validation of Defectively Called or
Noticed Meetings . . . . . . . . . . . . .6
2.9 Action Without a Meeting . . . . . . . . .6
2.10 Proxies. . . . . . . . . . . . . . . . . .7
2.11 Inspectors of Election . . . . . . . . . .8
3. Directors . . . . . . . . . . . . . . . . . . .9
3.1 Powers . . . . . . . . . . . . . . . . . .9
3.2 Number and Qualification of Directors. . 10
3.3 Election and Term of Office. . . . . . . 10
3.4 Vacancies. . . . . . . . . . . . . . . . 11
3.5 Removal of Directors Without Cause . . . 12
3.6 Place of Meeting . . . . . . . . . . . . 12
3.7 Organizational Meeting . . . . . . . . . 12
3.8 Other Regular Meetings . . . . . . . . . 12
3.9 Special Meetings . . . . . . . . . . . . 13
3.10 Action Without Meeting . . . . . . . . . 13
3.11 Action at a Meeting: Quorum and Required
Vote . . . . . . . . . . . . . . . . . . 13
3.12 Validation of Defectively Called or Noticed
Meetings . . . . . . . . . . . . . . . . 14
3.13 Adjournment. . . . . . . . . . . . . . . 14
3.14 Fees and Compensation. . . . . . . . . . 14
3.15 Indemnification of Agents of the Corporation;
Purchase of Liability Insurance. . . . . 15
Article Section Page
4. Executive and Other Committees. . . . . . . . 17
5. Officers. . . . . . . . . . . . . . . . . . . 18
5.1 Officers . . . . . . . . . . . . . . . . 18
5.2 Appointment of Officers. . . . . . . . . 18
5.3 Subordinate Officers, Etc. . . . . . . . 18
5.4 Removal and Resignation. . . . . . . . . 18
5.5 Vacancies. . . . . . . . . . . . . . . . 19
5.6 Chairman of the Board. . . . . . . . . . 19
5.7 President. . . . . . . . . . . . . . . . 19
5.8 Vice President . . . . . . . . . . . . . 19
5.9 Secretary. . . . . . . . . . . . . . . . 20
5.10 Chief Financial Officer. . . . . . . . . 20
6. Miscellaneous . . . . . . . . . . . . . . . . 21
6.1 Inspection of Corporate Records. . . . . 21
6.2 Checks, Drafts, Etc. . . . . . . . . . . 22
6.3 Annual Report. . . . . . . . . . . . . . 22
6.4 Contracts, Etc., How Executed. . . . . . 22
6.5 Certificate for Shares . . . . . . . . . 22
6.6 Representation of Shares of Other
Corporations . . . . . . . . . . . . . . 24
6.7 Inspection of Bylaws . . . . . . . . . . 24
6.8 Construction and Definitions . . . . . . 24
7. Amendments. . . . . . . . . . . . . . . . . . 24
7.1 Power of Shareholders. . . . . . . . . . 24
7.2 Power of Directors . . . . . . . . . . . 24
7.3 Records of Amendments. . . . . . . . . . 25
BYLAWS OF
MAIL BOXES ETC.
ARTICLE 1 - Offices
1.1 Principal Executive Office
1.1.1 The principal executive office of the Corporation
shall be located at such place or places as may be designated by
the Board of Directors.
1.2 Other Offices
1.2.1 Other business offices may at any time be established
by the Board of Directors at any place or places where the
Corporation is qualified to do business.
ARTICLE 2 - Meetings of Shareholders
2.1 Place of Meeting
2.1.1 All meetings of shareholders shall be held at the
principal executive office of the Corporation, or at any other
place within or without the State of California which may be
designated by either the Board of Directors or in a written consent
of all persons entitled to vote thereat and not present at the
meeting, given either before or after the meeting, and filed with
the secretary of the Corporation.
2.1.2 The annual meeting of shareholders shall be held,
each year, at the time and on the day set forth below or as
otherwise set by resolution of the Board of Directors:
Time of Meeting: 10:00 a.m. or such other time as the
directors shall designate by resolution
Date of Meeting: Fourth Friday of August
If this day shall be a legal holiday, then the meeting shall be
held on the next succeeding business day, at the same hour. At the
annual meeting, the shareholders shall elect a Board of Directors,
consider reports of the affairs of the Company and transact such
other business as may properly be brought before the meeting.
2.2 Special Meetings
2.2.1 Special meetings of the shareholders for the purpose
of taking any action permitted by the shareholders under the
California General Corporation Law and the Articles of
Incorporation of the Corporation, may be called at any time by the
chairman of the board, president, Board of Directors or by one or
more shareholders entitled to cast not less than 10 percent of the
votes of such meeting. Upon request in writing that a special
meeting of shareholders be called for any proper purpose, directed
to the chairman of the board, president, vice president or
secretary by any person (other than the Board of Directors)
entitled to call a special meeting of shareholders, the officer
forthwith shall cause notice to be given to shareholders entitled
to vote that a meeting will be held (not less than 35 nor more than
60 days after receipt of the request) at a time requested by the
person or persons calling the meeting.
2.3 Notice of Meetings
2.3.1 Written notice of shareholders meetings, annual or
special, shall be given to each shareholder entitled to vote,
either personally or by mail or other means of written
communication, charges prepaid, addressed to such shareholder at
his address appearing on the books of the Corporation or given by
him to the Corporation for the purpose of such notice. If any
notice or report addressed to the shareholder at the address
of such shareholder appearing on the books of the Corporation is
returned to the Corporation by the United States Postal Service
marked to indicate that the United States Postal Service is unable
to deliver such notice or report to the shareholder at such
address, all future notices or reports shall be deemed to have been
duly given without further mailing if the same shall be available
for the shareholder upon written demand of the shareholder at the
principal executive office of the Corporation for a period of one
year from the date of the giving of such notice or report to all
other shareholders. If a shareholder gives no address, notice
shall be deemed to have been given him if sent by mail or other
means of written communication addressed to the place where the
principal executive office of the Corporation is situated, or if
published at least once in a newspaper of general circulation in
the county in which said principal executive office is located.
2.3.2 All such notices shall be given to each shareholder
entitled thereto not less than 10 nor more than 60 days before each
meeting of shareholders. Any such notice shall be deemed to have
been given at the time when delivered personally or deposited in
the mail or sent by other means of written communication. An
affidavit of mailing of any such notice in accordance with the
foregoing provisions, executed by the secretary, assistant
secretary or any transfer agent of the Corporation shall be prima
facie evidence of the giving of the notice.
2.3.3 A notice of meeting of shareholders shall specify:
(a) The place, date and hour of such meeting;
(b) Those matters which the Board of Directors, at the
time of the mailing of the notice, intends to present for action by
the shareholders;
(c) If directors are to be elected, the names of
nominees intended at the time of the notice to be presented by
management for election;
(d) The general nature of a proposal, if any, to take
action with respect to approval of (i) a contract or other
transaction between the Corporation and one or more directors, or
any corporation, firm or association in which one or more
directors has a material financial interest, (ii) amendment of the
Articles of Incorporation, (iii) a reorganization of the
Corporation, as defined in the California General Corporation Law,
(iv) the voluntary winding up and dissolution of the
Corporation or (v) a plan of distribution in dissolution other than
in accordance with the rights of outstanding preferred shares, if
the Corporation has both preferred and common stock outstanding;
(e) If a special meeting of shareholders, in addition to
(a) and (c) above, the general nature of the business to be
transacted; and
(f) Such other matters, if any, as may be expressly
required by statute.
2.4 Quorum
2.4.1 The presence in person or by proxy of the persons
entitled to vote a majority of the voting shares of the Corporation
at any meeting shall constitute a quorum for the transaction of
business. The shareholders present at a duly called or held
meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken
(other than adjournment) is approved by at least a majority of the
shares required to constitute a quorum.
2.5 Adjourned Meeting and Notice Thereof
2.5.1 Any shareholders meeting, annual or special, whether
or not a quorum is present, may be adjourned from time to time by
the vote of a majority of the shares, the holders of which are
either present in person or represented by proxy, but in the
absence of a quorum no other business may be transacted at such
meeting, except as provided in Paragraph 2.4.1 above.
2.5.2 When any shareholders meeting, either annual or
special, is adjourned for 45 days or more, or if after adjournment
a new record date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given as in the case of an original
meeting. Except as provided above, it shall not be necessary to
give any notice of the time and place of the adjourned meeting or
of the business to be transacted thereat, other than by
announcement or the time and place thereof at the meeting at which
such adjournment is taken.
2.6 Record Date
2.6.1 The Board of Directors shall determine and fix a time
in the future as a record date for the determination of the
shareholders entitled to notice of, and to vote at, any meeting of
shareholders or entitled to give consent to corporate action in
writing without a meeting, to receive any report, dividend or
distribution or allotment of rights, or to exercise rights in
respect to any change, conversion or exchange of shares or to
exercise rights in respect of any other lawful action. The record
date so fixed shall not be more than 60 nor less than 10 days prior
to the date of any meeting nor more than 60 days prior to any other
event for the purposes of which it is fixed.
2.6.2 If no record date is fixed by the Board of Directors:
(a) The record date for determining shareholders
entitled to notice of, or to vote at, a meeting of shareholders
shall be at the close of business on the business day next
preceding the day on which notice of the meeting is given, or if
such notice is waived, at the close of business on the business day
next preceding the day on which the meeting of shareholders is
held.
(b) The record date for determining shareholders
entitled to give consent to corporate action in writing without a
meeting shall be the day on which the first written consent is
given.
(c) The record date for determining shareholders for any
other purpose shall be at the close of the business on the day on
which the Board of Directors adopts the resolution relating
thereto, or the 60th day prior to the date of such other action,
whichever is later.
2.6.3 Only shareholders of record on the record date are
entitled to notice of, and to vote at, any such meeting, to give
consent without a meeting, to receive any report, dividend,
distribution or allotment of rights, or to exercise the rights, as
the case may be, notwithstanding any transfer of any shares on the
books of the Corporation after the record date, except as otherwise
provided in the Articles of Incorporation of the Corporation or
these Bylaws.
2.7 Voting Rights; Cumulative Voting
2.7.1 Except as otherwise provided in the California
General Corporation Law or in the Articles of Incorporation of the
Corporation, each shareholder of record on the record date shall be
entitled to one vote for each share on each matter submitted to a
vote of the shareholders. Such vote may be viva voce or by ballot;
provided, however, that all elections for directors must be by
ballot upon demand made by a shareholder at any election and before
the voting begins. Except with respect to election of directors,
the affirmative vote of the majority of the shares represented at
the meeting and entitled to vote on any matter shall be the act of
the shareholders, unless the vote of a greater number of voting by
classes is required by the California General Corporation Law or
the Articles of Incorporation of the Corporation.
2.7.2 Every shareholder complying with the requirements of
this Section 2.7 and entitled to vote at any election for directors
shall have the right to cumulate such shareholder's votes and give
one candidate a number of votes equal to the number of directors to
be elected multiplied by the number of votes to which such
shareholder's shares are entitled, or to distribute such
shareholder's votes on the same principle among as many candidates
as such shareholder shall think fit. No shareholder shall be
entitled to cumulate votes unless the name of the candidate or
candidates for whom such votes would be cast has been placed in
nomination prior to the voting and unless a shareholder has given
notice at the meeting, prior to the voting, of intention to
cumulate votes. If any one shareholder has given such notice, all
shareholders may cumulate their votes for candidates in nomination.
The candidates receiving the highest number of votes of shares
entitled to be voted for them, up to the number of directors to be
elected, shall be elected.
2.8 Validation of Defectively Called or Noticed Meetings
2.8.1 The transactions of any meeting of shareholders,
either annual or special, however called and noticed, shall be as
valid as though taken at a meeting duly held after regular call and
notice, if a quorum is present, either in person or by proxy, and
if, either before or after the meeting, each of the persons
entitled to vote, not present in person or by proxy, signs a
written waiver of notice, a consent to the holding of such
meeting or an approval of the minutes thereof. All such waivers,
consents or approvals shall be filed with the corporate records or
made a part of the minutes of the meeting, as appropriate.
2.8.2 Attendance of a shareholder at a meeting of
shareholders shall constitute a waiver of notice of such meeting,
except when such shareholder objects, at the beginning of the
meeting, to the transaction of any business because the meeting was
not lawfully called or convened; except that, attendance at a
meeting is not a waiver of any right to object to the consideration
of matters required to be included in the notice of the meeting
but not so included if such objection is expressly made at the
meeting.
2.9 Action Without a Meeting
2.9.1 Directors may be elected without a meeting by a
consent in writing, setting forth the action so taken, signed by
all of the shareholders who would be entitled to vote for the
election of said directors; provided that, except as hereinafter
set forth, a director may be elected at any time to fill a vacancy
not created by the removal of a director which is not filled by the
directors, by the written consent of shareholders holding a
majority of the outstanding shares entitled to vote for the
election of directors.
2.9.2 Any other action which, under any provision of the
California General Corporation Law, may be taken at a meeting of
shareholders, may be taken without a meeting and without notice,
except as hereinafter set forth, if a consent in writing, setting
forth the action so taken, is signed by the holders of outstanding
shares having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted.
2.9.3 Unless the consent of all shareholders entitled to
vote has been solicited in writing: (a) notice of any proposed
shareholder approval of (i) a contract or other transaction between
the Corporation and one or more directors, or any corporation, firm
or association in which one or more directors has a material
financial interest, (ii) indemnification of an agent of the
Corporation, as authorized by these Bylaws, (iii) a reorganization
of the Corporation, as defined in the California General
Corporation Law, or (iv) a distribution in dissolution, other than
in accordance with the rights of outstanding preferred shares, if
the Corporation has both preferred and common stock outstanding,
without a meeting by less than unanimous written consent, shall be
given at least ten days before the consummation of the action
authorized by such approval; and (b) prompt notice shall be given
of any other corporate action taken and approved by shareholders
without a meeting by less than unanimous written consent, to those
shareholders entitled to vote who have not consented in writing.
Such notices shall be given in the manner and shall be deemed to
have been given as provided in Section 2.3 of these Bylaws.
2.9.4 Any shareholder giving a written consent, or the
shareholder's proxyholder, a transferee of the shares or a
personal representative of the shareholder or their respective
proxyholders, may revoke the consent by a writing received by the
Corporation prior to the time that written consents of the number
of shares required to authorize the proposed action have been filed
with the secretary of the Corporation, but may not do so
thereafter. Such revocation is effective upon its receipt by the
secretary of the Corporation.
2.10 Proxies
2.10.1 Every person entitled to vote or execute written
consents shall have the right to do so either in person or by one
or more agents authorized by a written proxy executed by such
person or his duly authorized agent and filed with the secretary of
the Corporation. Any proxy duly executed is not revoked and
continues in full force and effect until (i) an instrument revoking
it or a duly executed proxy bearing a later date is filed with the
secretary of the Corporation prior to the vote pursuant thereto,
(ii) the person executing the proxy attends the meeting and votes
in person or (iii) written notice of the death or incapacity of the
maker of such proxy is received by the Corporation before the vote
pursuant thereto is counted; provided that no such proxy shall be
valid after the expiration of 11 months from the date of its
execution, unless the person executing it specifies therein the
length of time for which such proxy is to continue in
force. Nothing contained herein shall prohibit a person from
granting an irrevocable proxy consistent with the provisions of the
California Corporations Code.
2.11 Inspectors of Election
2.11.1 In advance of any meeting of shareholders, the Board
of Directors may appoint any persons, other than nominees for
office, as inspectors of election to act at such meeting or any
adjournment thereof. If inspectors of election are not so
appointed, the chairman of any such meeting may, and on the request
of any shareholder or his proxy shall, make such appointment at the
meeting. The number of inspectors of election shall be either one
or three. If appointed at a meeting on the request of one or more
shareholders or proxies, the majority of shares represented in
person or by proxy shall determine whether one or three inspectors
are to be appointed. In case any person appointed as an inspector
of election fails to appear or fails or refuses to act, the vacancy
may, and on the request of any shareholder or a shareholders proxy
shall, be filled by appointment by the Board of Directors prior to
the meeting, or at the meeting by the
chairman of the meeting.
2.11.2 The duties of such inspectors of election shall be
as prescribed by the California General Corporation Law and shall
include: determining the number of shares outstanding and the
voting power of each, the shares represented at the meeting,
the existence of a quorum, the authenticity, validity and effect of
proxies; receiving votes, ballots or consents; hearing and
determining all challenges and questions in any way arising in
connection with any-right to vote; counting and tabulating all
votes or consents; determining when the polls shall close;
determining the results; and such other acts as may be proper to
conduct the election or vote with fairness to all shareholders. In
the determination of the validity and effect of proxies, the dates
contained on the forms of proxy shall presumptively determine the
order of execution of the proxies, regardless of the postmark dates
on the envelopes in which they are mailed.
2.11.3 The inspectors of election shall perform their
duties impartially, in good faith, to the best of their ability and
as expeditiously as is practical. If there are three inspectors of
election, the decision, act or certificate of a majority is
effective in all respects as the decision, act or certificate of
all. Any report or certificate made by the inspectors of election
is prima facie evidence of the facts stated therein.
ARTICLE 3 - Directors
3.1 Powers
3.1.1 Subject to limitations set forth in the Articles of
Incorporation and the Bylaws of the Corporation and in the
California General Corporation Law as to action to be authorized or
approved by the shareholders or by the outstanding shares, and
subject to the duties of directors as prescribed by these Bylaws,
the business and affairs of the Corporation shall be managed and
all corporate powers shall be exercised by or under the
direction of the Board of Directors. Without prejudice to such
general powers, but subject to the same limitations, it is hereby
expressly declared that the directors shall have the following
powers:
(a) To select and remove all officers, agents and employees
of the Corporation, prescribe such powers and duties for them as
may not be inconsistent with law, with the Articles of
Incorporation or the Bylaws, fix their compensation and require
from them security for faithful service;
(b) To conduct, manage and control the affairs and business
of the Corporation, and to make such rules and regulations therefor
not inconsistent with law, the Articles of Incorporation or the
Bylaws, as they may deem best;
(c) To change the principal office for the transaction of the
business of the Corporation from one location to another within or
without the State of California, as provided in Article 1, Section
1.1.1 hereof; to fix and locate from time to time one or
more other offices of the Corporation within or without the State
of California, as provided in Article 1, Section 1.2.1 hereof; to
designate any place within or without the State of California for
the holding of ny shareholders meetings; and to adopt, make and
use a corporate seal, to prescribe the form of certificates of
stock, and to alter the form of such seal and of such stock
certificates from time to time as in their judgment they
deem best, provided such seal and such certificates shall at all
times comply with the provisions of law;
(d) To authorize the issue of stock of the Corporation from
time to time, upon such terms as may be lawful, in consideration
of money paid, labor done, services actually rendered to the
Corporation or for its benefit or in its formation or
reorganization, debts or securities canceled, tangible or
intangible property actually received either by the Corporation or
by a wholly owned subsidiary, or as a share dividend, or upon a
stock split, reverse stock split, reclassification or conversion of
outstanding shares into shares of another class, exchange of
outstanding shares for shares of another class, or other change
affecting outstanding shares;
(e) To borrow money and incur indebtedness for the purposes
of the Corporation and to cause to be executed and delivered
therefore, in the corporate name, promissory notes, bonds,
debentures, deeds of trust, mortgages, pledges, hypothecations or
other evidences of debt and securities therefor; and
(f) To delegate the management of the day-to-day operations
of the business of the Corporation to a management company or other
person, provided that the business and affairs of the Corporation
shall be managed and all corporate powers shall be exercised under
the ultimate direction of the Board of Directors.
3.2 Number and Qualification of Directors
3.2.1 The number of Directors of the Corporation shall not
be less than five nor more than nine until changed by amendment of
the Articles of Incorporation or by a bylaw amending the section,
duly adopted by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote; provided that
a proposal to reduce the authorized minimum number of directors
below five cannot be adopted if the votes cast against its adoption
at a meeting or the shares not consenting in the case of action by
written consent, are equal to more than 162/3 percent of the
outstanding shares entitled to vote. The exact number of directors
shall be set from time to time, within the limits specified in the
Articles of Incorporation or in this section by a bylaw or
amendment thereof, duly adopted by the shareholders or by the Board
of Directors; and
3.2.2 Subject to the foregoing provisions for changing the
number of directors, the exact number of directors of this
Corporation shall be eight.
3.3 Election and Term of Office
3.3.1 The directors shall be elected at each annual meeting
of shareholders but, if any such annual meeting is not held or the
directors are not elected thereat, the directors may be elected at
any special meeting of shareholders held for that purpose.
Each director, including a director elected to fill a vacancy,
shall hold office until the expiration of the term for which
elected and until a successor has been elected and qualified,
subject to the provisions of the California General Corporation Law
and these Bylaws with respect to vacancies on the Board.
3.4 Vacancies
3.4.1 A vacancy in the Board of Directors shall be deemed
to exist in any of the following instances:
(a) The death, resignation or removal of any director.
(b) If a director shall have been declared of unsound
mind by order of court or convicted of a felony.
(c) If the authorized number of directors shall have
been increased.
(d) If the shareholders shall fail to elect the full
authorized number of directors.
3.4.2 Vacancies in the Board of Directors, except for a
vacancy created by the removal of a director, may be filled by a
majority of the remaining directors, though less than a quorum, or
by a sole remaining director. Each director so elected shall hold
office until his successor is elected at an annual or a special
meeting of the shareholders. A vacancy in the Board of Directors
created by the removal of a director may only be filled by the vote
of a majority of the shares entitled to vote represented at a duly
held meeting at which a quorum is present, or by the unanimous
written consent of the shareholders.
3.4.3 The shareholders may elect a director or directors at
any time to fill any vacancy or vacancies not filled by the
directors. Any such election by written consent (other than a
vacancy created by the removal of a director) shall require the
consent of holders of a majority of the outstanding shares entitled
to vote.
3.4.4 Any director may resign effective upon giving written
notice to the chairman of the board, the president, the secretary
or the Board of Directors of the Corporation, unless the notice
specifies a later time for the effectiveness of such resignation;
and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. If the
resignation is effective at a future time, the Board or
shareholders shall have the power to elect a successor to take
office when the resignation becomes effective.
3.4.5 A reduction of the authorized number of directors
shall not have the effect of removing any director prior to the
expiration of his term of office.
3.5 Removal of Directors Without Cause
3.5.1 The entire Board of Directors, or any individual
director, may be removed from office by a vote of shareholders
holding a majority of the outstanding shares entitled to vote at an
election of directors; provided, however, unless the entire Board
is removed, an individual director shall not be removed, unless (i)
the number of shares voted against removal or not consenting to
such removal, in the case of a written consent, would be
insufficient to elect such director if voted cumulatively at an
election at which the same total number of votes were cast and the
entire number of directors authorized at the time of such
director's most-recent election were then being elected or (ii)
holders of the shares of any class or series entitled to elect one
or more directors shall vote to remove a director so elected by
said class or series.
3.6 Place of Meeting
3.6.1 Regular meetings of the Board of Directors shall be
held at any place within or without the State of California which
has been designated in the notice of the meeting or, if not stated
in the notice, or if there is no notice, from time to time by
resolution of the Board of Directors or by written consent of all
members of the Board. In the absence of such designation, regular
meetings shall be held at the principal executive office of the
Corporation. Special meetings of the Board may be held either at
a place so designated or at the principal executive office of the
Corporation.
3.7 Organizational Meeting
3.7.1 Immediately following each annual meeting of
shareholders, the Board of Directors shall hold an organizational
meeting at the place of said annual meeting, or at such other place
as shall be fixed by the Board of Directors, for the purposes of
organization, election of officers and the transaction of other
business. Call and notice of such meetings are hereby dispensed
with.
3.8 Other Regular Meetings
3.8.1 Other regular meetings of the Board of Directors
shall be held at such time and place as may be determined from time
to time by the Board of Directors. If such date should fall upon
a legal holiday, then the meeting shall be held at the same time
on the next succeeding business day thereafter. Notice of all such
regular meetings of the Board of Directors is hereby dispensed
with.
3.9 Special Meetings
3.9.1 Special meetings of the Board of Directors for any
purposes may be called at any time by the Chairman of the Board, if
there be such an officer, the president, any vice president, the
secretary or by any two directors.
3.9.2 Written notice of the time and place of special
meetings shall be delivered personally to each director or
communicated to each director by telephone, telegraph or
mail, charges prepaid, addressed to him at his address as it is
shown upon the records of the Corporation or, if it is not so shown
on the records or is not readily ascertainable, at the place at
which meetings of the directors are regularly held. In case such
notice is mailed, it shall be deposited in the United States mail
or, if telegraphed, delivered to the telegraph company in the city
in which the principal executive office of the Corporation
is located at least-four days prior to the time of the holding of
the meeting. In case such notice is delivered personally or by
telephone, as above provided, it shall be so delivered
at least 48 hours prior to the time of the holding of the meeting.
Such mailing, telegraphing or delivery, personally or by telephone,
as above provided, shall be due, legal and personal notice to such
director.
3.9.3 Any notice shall state the date, place and hour of
the meeting and the general nature of the business to be
transacted, and no other business may be transacted at the meeting.
3.10 Action Without Meeting
3.10.1 Any action by the Board of Directors may be taken
without a meeting if all members of the Board shall individually or
collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the
proceedings of the Board and shall be of the same force and effect
as a unanimous vote
of such directors.
3.11 Action at a Meeting: Quorum and Required Vote
3.11.1 The presence of a majority of the authorized number
of directors at a meeting of the Board of Directors constitutes a
quorum for the transaction of business, except as hereinafter
provided. Members of the Board may participate in a meeting
through use of conference telephone or similar communications
equipment, so long as all members participating in such meeting can
hear one another. Participation in a meeting as permitted in the
preceding sentence constitutes presence in person at such meeting.
Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall
be regarded as the act of the Board of Directors, unless a greater
number, or the same number after disqualifying one or more
directors from voting, as required by law, the Articles of
Incorporation of the Corporation or these Bylaws.
3.11.2 A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of a
director provided that any action taken is approved by at least a
majority of the required quorum for such meeting.
3.12 Validation of Defectively Called or Noticed Meetings
3.12.1 The transactions of any meeting of the Board of
Directors, however called and noticed or wherever held, shall be as
valid as though taken at a meeting duly held after regular call and
notice if a quorum is present and if, either before or after the
meeting, each of the directors not present or who has, though
present, prior to the meeting or at its commencement, protested the
lack of proper notice to him, signs a written waiver of notice or
a consent to holding such meeting or an approval of the
minutes thereof. All such waivers, consents or approvals shall be
filed with the corporate records or made a part of the minutes of
such meeting.
3.13 Adjournment
3.13.1 A quorum of the Board of Directors may adjourn any
directors meeting to meet again at a stated day and hour;
provided, however, that in the absence of a quorum, a majority of
the directors present at any directors meeting, either regular or
special, may adjourn from time to time until the time fixed for the
next regular meeting of the Board.
3.13.2 If a meeting is adjourned for more than 24 hours,
notice of any adjournment to another time or place shall be given
prior to the time of the adjourned meeting to the directors who
were not present at the time of adjournment. Otherwise,
notice of the time and place of holding an adjourned meeting need
not be given to absent directors if the time and place is so fixed
at the adjourned meeting.
3.14 Fees and Compensation
3.14.1 Directors and members of committees appointed by the
Board may receive such compensation for their services and
reimbursement for expenses, if any, as may be fixed or determined
by resolution of the Board.
3.15 Indemnification of Agents of the
Corporation; Purchase of Liability Insurance
3.15.1 For the purposes of this Section 3.15, "agent" means
any person who (i) is or was a director, officer, employee or other
agent of the Corporation, (ii) is or was serving at the request of
the Corporation as a director, officer, employee or agent of
another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise or (iii) was a director,
officer, employee or agent of a foreign or domestic corporation
which was a predecessor corporation of the Corporation or of
another enterprise at the request of such predecessor corporation;
"proceeding means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or
investigative; and "expenses" includes, without limitation,
attorneys' fees and any expenses of establishing a right to
indemnification under Paragraph 3.15.4 or 3.15.5(c) of this Section
3.15.
3.15.2 The Corporation shall indemnify any person who was
or is a party, or is threatened to be made a party, to any
proceeding (other than an action by or in the right of the
Corporation to procure a judgment in its favor) by reason of the
fact that such person is or was an agent of the Corporation against
expenses, judgments, fines, settlements and other amounts actually
and reasonably incurred in connection with such proceeding if such
person acted in good faith and in a manner such person reasonably
believed to be in the best interests of the Corporation and, in the
case of a criminal proceeding, had no reasonable cause to believe
the conduct of such person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent shall not, of itself,
create a presumption that the person did not act in good faith and
in a manner which the person reasonably believed to be in the best
interests of the Corporation or that the person had reasonable
cause to believe that the person's conduct was unlawful.
3.15.3 The Corporation shall indemnify any person who was
or is a party, or is threatened to be made a party, to any
threatened, pending or completed action by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that such person is or was an agent of the Corporation against
expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such action if such
person acted in good faith, in a manner such person believed to be
in the best interests of the Corporation and with such care,
including reasonable inquiry, as an ordinarily prudent person in a
like position would use under similar circumstances. No
indemnification shall be made under this Paragraph 3.15.3:
(a) In respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the
Corporation in the performance of such person's duty to the
Corporation and its shareholders, unless and only to the extent
that the court in which such proceeding is or was pending shall
determine upon application that, in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for expenses and then only to the extent that the court
shall determine; or
(b) Of amounts paid in settling or otherwise disposing
of a threatened or pending action without court approval; or
(c) Of expenses incurred in defending a threatened or
pending action which is settled or otherwise disposed of without
court approval.
3.15.4 To the extent that an agent of the Corporation has
been successful on the merits in defense of any proceeding referred
to in Paragraph 3.15.2 or 3.15.3 above, or in defense of any claim,
issue or matter therein, said agent shall be indemnified against
expenses actually and reasonably incurred by said agent in
connection therewith.
3.15.5 Except as provided in Paragraph 3.15.4 above, any
indemnification under this section shall be made by the Corporation
only if authorized in the specific case upon a determination that
indemnification of the agent is proper in the circumstances
because the agent has met the applicable standard of conduct set
forth in Paragraph 3. of the following:
(a) A majority vote of a quorum consisting of directors
who are not parties to such proceeding;
(b) If such a quorum of directors is not obtainable, by
independent legal counsel in a written opinion;
(c) Approval or ratification by the affirmative vote of
a majority of the shares of this Corporation entitled to vote
represented at a duly held meeting at which a quorum is present or
by the written consent of holders of a majority of the outstanding
shares which would be entitled to vote at such meeting. For such
purpose, the shares owned by the person to be indemnified shall not
be considered outstanding or entitled to
vote thereon; or
(d) The court in which such proceeding is or was
pending, upon application made by the Corporation, the agent or the
attorney or other person rendering services in connection with the
defense, whether or not such application by said agent, attorney or
other person is opposed by the Corporation.
3.15.6 Expenses incurred in defending any proceeding may be
advanced by the Corporation prior to the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of the
agent to repay such amount if it shall be determined
ultimately that the agent is not entitled to be indemnified as
authorized in this Section 3.15.
3.15.7 The indemnification provided in this Section 3.15 is
not exclusive of any other rights which the agents of the
Corporation may be entitled under any other provision of these
bylaws, agreement, vote of shareholders or disinterested directors
or otherwise, or pursuant to the laws of California. Such
indemnification shall continue as to a person who has ceased to be
an agent and shall inure to the benefits of the heirs,
executors and administrators of the person. Nothing contained in
this Section 3.15 shall affect any right to indemnification to
which persons other than directors and officers of the Corporation,
or any subsidiary thereof, may be entitled by contract or
otherwise.
3.15.8 No indemnification or advance shall be made under
this section, except as provided in Paragraph 3.15.4 or 3.15.5(c)
above, in any circumstance where it
appears:
(a) That it would be inconsistent with a provision of the
Articles of Incorporation of the Corporation, a resolution of the
shareholders or an agreement in effect at the time of the accrual
of the alleged cause of action asserted in the proceeding
in which the expenses were incurred or other amounts were paid
which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
3.15.9 The Corporation may, to the full extent permitted by
law, purchase and maintain insurance on behalf of any agent against
any liability which may be asserted against such agent in such
capacity or arising out of the agent's status as such whether or
not the Corporation would have the power to indemnify the agent
against such liability under the provisions of California and
federal law.
ARTICLE 4 - Executive and Other Committees
4.1 Executive and Other Committees
4.1.1 The Board of Directors may appoint an executive
committee, and such other committees as may be necessary from time
to time, consisting of two or more of its members with such powers
as it may designate, consistent with the Articles of Incorporation
of the Corporation, these Bylaws and the California General
Corporation Law. Such committees shall hold office at the
pleasure of the Board.
ARTICLE 5 - Officers
5.1 Officers
5.1.1 The officers of the Corporation shall be a president,
vice president, secretary and chief financial officer. The
Corporation may also have, at the election of the Board of
Directors, a chairman of the board, one or more additional vice
presidents, one or more assistant secretaries, one or more
assistant chief financial officers and such other officers as may
be appointed in accordance with the provisions of Section 5.3 of
this article. Any number of offices may be held by the same person
unless the Articles of Incorporation of the Corporation or these
Bylaws provide otherwise.
5.2 Appointment of Officers
5.2.1 The officers of the Corporation, except such officers
as may be appointed in accordance with the provisions of Section
5.3 or 5.5 below, shall be chosen annually by the Board of
Directors and shall hold office until their respective successors
shall be qualified and appointed or until such officers shall
resign, be removed or otherwise disqualified.
5.3 Subordinate Officers. Etc.
5.3.1 The Board of Directors may at any time appoint, and
may empower the president to appoint, such other officers as the
business of the Corporation may require, each of whom shall hold
office for such period, have such authority and perform such
duties as are provided in these Bylaws or as the Board of Directors
may from time to time determine.
5.4 Removal and Resignation
5.4.1 Any officer may be removed, either with or without
cause, by the Board of Directors at any regular or special meeting
thereof or, except in t} the Board of Directors, by any officer
upon whom such power of removal may be conferred by the
Board of Directors (subject, in each case, to the rights, if any,
of an officer under any contract of employment).
5.4.2 Any officer may resign at any time by giving written
notice to the Board of Directors or to the president or secretary
of the Corporation, without prejudice, however, to the rights, if
any, of the Corporation under any contract to which such
officer is a party. Any such resignation shall take effect as of
the date of receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
5.5 Vacancies
5.5.1 A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be
filled in the manner prescribed in these Bylaws for regular
appointments to such office.
5.6 Chairman of the Board
5.6.1 The chairman of the board, if there shall be such an
officer, shall, if present, preside at all meetings of the Board of
Directors and exercise and perform such other powers and duties as
may be from time to time assigned to him by the Board of Directors
or prescribed by these Bylaws.
5.7 President
5.7.1 Subject to such supervisory powers, if any, as may be
given by the Board of Directors to the chairman of the board, if
there be such an officer, the president shall be the general
manager and chief executive officer of the Corporation and shall,
subject to the control of the Board of Directors, have general
supervision, direction and control of the business and affairs of
the Corporation. The president shall preside at all meetings of
shareholders and, in the absence of the chairman of the board, or
if there be none, at all meetings of the Board of Directors. The
president shall be ex officio a member of all the standing
committees of the Board of Directors, including the executive
committee, if any, and shall have the general powers and duties of
management usually vested in the office of president of a
corporation and shall have such other powers and duties as may be
prescribed by the Board of Directors or these Bylaws.
5.8 Vice President
5.8.1 In the absence or disability of the president, the
vice presidents, in order of their rank as fixed by the Board of
Directors, or, if not ranked, the vice president designated by the
Board of Directors, shall perform all the duties of the president
and when so acting shall have all the powers of, and be subject to
all the restrictions upon, the president. The vice presidents
shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Board
of Directors or these Bylaws.
5.9 Secretary
5.9.1 The secretary shall record, or cause to be recorded,
and keep, or cause to be kept, at the principal executive office of
the Corporation and such other place as the Board of Directors may
order, a book of the minutes of actions taken at all meetings of
directors and shareholders, with the time and place of holding,
whether regular or special and, if special, how authorized, the
notice thereof given, the names of those present at directors
meetings, the number of shares present or represented by proxy at
shareholders meetings and the proceedings thereof.
5.9.2 The secretary shall keep, or cause to be kept, at the
principal executive office of the Corporation or at the office of
the Corporation's transfer agent, a share register, or a
duplicate share register, showing the names of the shareholders and
their addresses, the number and classes of shares held by each, the
number and date of certificates issued for the same and the number
and date of cancellation of every certificate surrendered for
cancellation.
5.9.3 The secretary shall give, or cause to be given,
notice of all meetings of shareholders and the Board of Directors
required by these Bylaws or by law to be given, shall keep the
corporate seal of the Corporation in safe custody, and shall have
such other powers and perform such other duties as may be
prescribed by the Board of Directors or these Bylaws.
5.9.4 The assistant secretary, if there shall be such an
officer, or, if there be more than one, the assistant secretaries
in the order determined by the Board of Directors (or if there be
no such determination, then in the order of their election), shall,
in the absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
5.10 Chief Financial Officer
5.10.1 The chief financial officer shall be the chief
financial officer of the Corporation and shall keep and maintain,
or cause to be kept and maintained, adequate and correct accounts
of the properties and business transactions of the Corporation,
including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, surplus and shares.
The books of account shall at all reasonable times be open to
inspection by any director.
5.10.2 The chief financial officer shall deposit all moneys
and other valuables in the name and to the credit of the
Corporation with such depositories as may be designated by the
Board of Directors. The chief financial officer shall disburse
the funds of the Corporation as may be ordered by
the Board, render to the president and directors, whenever they
request it, an account of all of his transactions as chief
financial officer and of the financial condition of the
Corporation and have such other powers and perform such other
duties as may be prescribed by the Board of Directors or these
Bylaws.
5.10.3 The assistant chief financial officer, if there
shall be such an officer, or, if there shall be more than one, the
assistant chief financial officers in the order determined by the
Board of Directors (or, if there be no such determination, then in
the order of their election), shall, in the absence of the chief
financial officer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the chief
financial officer and shall perform such other duties and have such
other powers as the Board of Directors may from time to time
prescribe.
ARTICLE 6 - Miscellaneous
6.1 Inspection of Corporate Records
6.1.1 The accounting books and records, the record of
shareholders and minutes of proceedings of the shareholders and the
Board of Directors and committees of the Board and any subsidiary
of this Corporation shall be open to inspection upon the written
demand on the Corporation of any shareholder or holder of a voting
trust certificate at any reasonable time during usual business
hours for a purpose reasonably related to such holder's interests
as a shareholder or as the holder of such voting trust certificate.
Such inspection by a shareholder or holder of a voting trust
certificate may be made in person or by agent or attorney and the
right of inspection includes the right to copy and make
extracts. Demand of inspection shall be made in writing upon the
president, secretary or assistant secretary of the Corporation.
6.1.2 A shareholder or shareholders holding at least five
percent, in the aggregate of the outstanding voting shares of the
Corporation or who hold(s) at least one percent of such voting
shares and have filed a Schedule 14B with the United States
Securities and Exchange Commission relating to the election of
directors of the Corporation shall have (in person, or by agent or
attorney) the right to do either or both of the following: (i)
inspect and copy the record of shareholders' names and addresses
and shareholdings during usual business hours upon five business
days' prior written demand upon the Corporation, or (ii) to obtain
from the transfer agent for the Corporation, upon written demand
and upon the tender of the transfer agent's usual charges, a list
of the shareholders' names and addresses who are entitled to vote
for the election of directors and their shareholdings, as of the
most recent record date for which it has been compiled or as of a
date specified by the shareholder subsequent to the date of
demand. Said list shall be made available on or before the later
of five business days after the demand is received or the date
specified therein as the date as of which the list is to be
compiled.
6.1.3 Every director shall have the absolute right, at any
reasonable time, to inspect and copy all books, records and
documents of every kind and to inspect the physical properties of
the Corporation. Such inspection by a director may be made in
person or by agent or attorney and the right of inspection includes
the right to copy and make extracts.
6.2 Checks Drafts, Etc.
6.2.1 All checks, drafts or other orders for payment of
money, notes or other evidences of indebtedness issued in the name
of, or payable to, the Corporation shall be signed or endorsed by
such person or persons and in such manner as from time to time
shall be determined by resolution of the Board of Directors.
6.3 Annual Report
6.3.1 So long as there are fewer than 100 holders of record
of the Corporation's shares, the annual report to shareholders
referred to in section 1501 of the California Corporations Code is
expressly dispensed with, but nothing herein shall be interpreted
as prohibiting the Board of Directors from issuing such reports or
as affecting the rights of shareholders to obtain special financial
statements as provided by the California General Corporation Law.
6.4 Contracts Etc., How Executed
6.4.1 The Board of Directors, except as otherwise provided
in these Bylaws, may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in the
name of and on behalf of the Corporation. Such authority
may be general or confined to specific instances; however, unless
so authorized by the Board of Directors, no officer, agent or
employee shall have any power or authority to bind the Corporation
by any contract or engagement or to pledge its credit or to render
it liable for any purpose or to any amount.
6.5 Certificate for Shares
6.5.1 Every holder of shares of the Corporation shall be
entitled to have a certificate signed in the name of the
Corporation by the chairman or vice chairman of the Board of
Directors or the president or a vice president and by the chief
financial officer or an assistant treasurer or the secretary or any
assistant secretary, certifying the number of shares and the class
or series of shares owned by said shareholder. Any signature on
the certificate may be a facsimile, provided that in such event, at
least one signature, including that of either officer or the
Corporation's registrar or transfer agent, if any, shall be
manually signed. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if such person were an
officer, transfer agent or registrar at the date of issue.
6.5.2 Any such certificate shall also contain such legend
or other statement as may be required by the California General
Corporation Law, the Corporate Securities Law of 1968, the federal
securities laws and any agreement between the Corporation and
the shareholders thereof.
6.5.3 Certificates for shares may be issued prior to full
payment under such restrictions and for such purposes as the
Board of Directors or these Bylaws may provide; provided, however,
that any such certificate so issued prior to full payment shall
state on the face thereof the amount of the consideration remaining
unpaid and the terms of payment thereof.
6.5.4 No new certificate for shares shall be issued in lieu
of an old certificate unless the latter is surrendered and canceled
at the same time; provided, however, that a new certificate will be
issued without the surrender and cancellation of the old
certificate if (i) the old certificate is lost, apparently
destroyed or wrongfully taken, (ii) the request for the issuance of
the new certificate is made within a reasonable time after the
owner of the old certificate has notice of its loss, destruction or
theft, (iii) the request for the issuance of a new certificate is
made prior to the receipt of notice by the Corporation that
the old certificate has been acquired by a bona fide purchaser,
(iv) the owner of the old certificate files a sufficient indemnity
bond with, or provides other adequate security to, the Corporation
and (v) the owner satisfies any other reasonable requirements
imposed by the Corporation. In the event of the issuance of a new
certificate, the rights and liabilities of the Corporation, and of
the holders of the old and new certificates, shall be
governed by the provisions of the California Uniform Commercial
Code.
6.6 Representation of Shares of Other Corporations
6.6.1 The president or any vice president and the secretary
or any assistant secretary of the Corporation are authorized to
vote, represent and exercise on behalf of the Corporation all
rights incident to any and all shares of any other corporation or
corporations standing in the name of the Corporation. The
authority herein granted to said officers to vote or represent on
behalf of the Corporation any and all shares held by
the Corporation in any other corporation or corporations may be
exercised either by such officers in person or by any other person
authorized to do so by proxy or power of attorney duly executed by
said officers.
6.7 Inspection of Bylaws
6.7.1 The Corporation shall keep at its principal executive
office in California or, if its principal executive office is not
in California, then at its principal business office in California
(or otherwise provide upon written request of any shareholder) the
original or a copy of these Bylaws as amended or otherwise altered
to date, certified by the secretary, which shall be open to
inspection by the shareholders at all reasonable times during
regular business hours.
6.8 Construction and Definitions
6.8.1 Unless the context otherwise requires, the general
provisions, rules of construction and definitions contained in the
California General Corporation Law shall govern the construction of
these Bylaws. Without limiting the generality of the foregoing,
the masculine gender includes the feminine and neuter, the singular
number includes the plural and the plural number includes the
singular, and the term "person" includes a corporation as well as
a natural person.
ARTICLE 7 - Amendments
7.1 Power of Shareholders
7.1.1 New bylaws may be adopted or these Bylaws may be
amended or repealed by the affirmative vote of a majority of the
outstanding shares entitled to vote, or by the written consent of
shareholders entitled to vote such shares, except as otherwise
provided by law or by the Articles of Incorporation of the
Corporation.
7.2 Power of Directors
7.2.1 Subject to the right of shareholders as provided in
Section 7.1 above to adopt, amend or repeal bylaws, bylaws other
than a bylaw or amendment thereof changing the authorized number of
directors may be adopted, amended or repealed by the Board of
Directors, except as specifically set forth in the Articles of
Incorporation or
these Bylaws to the contrary.
7.3 Records of Amendments
7.3.1 Whenever an amendment or new bylaw is adopted, it
shall be filed in the appropriate place in the minute book of the
Corporation with the original Bylaws. If any bylaw is repealed,
the fact of repeal with the date of the meeting at which the repeal
was enacted or written consent was filed shall be stated in said
book.